More on Metadata

Evan Schaeffer has these comments on the Florida Bar’s Ethics Committee proposed advisory opinion on metadata. The opinion instructs attorneys to safeguard metadata in documents, but at the same time, directs lawyers who receive documents not to view metadata if not intended for them. Evan wonders why Florida doesn’t put the onus on the transmitting lawyers to protect their documents and instead, imposes a burden on the recipient not to read that information.

By taking the burden off transmitting lawyers to protect documents, the Florida bar ultimately sets their clients up for greater problems. What happens, for example ,when a Florida attorney transmits a document out of state? Surely, the Florida bar can’t sanction a New York attorney for reading the Florida attorney’s metadata. If Florida attorneys aren’t encouraged to secure their documents, their clients will suffer in the long run in cases where the Florida Bar has no control over the lawyer who receives the document at the other end.

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Carolyn, The proposed rule doesn’t take the burden off the transmitting lawyer. It’s first clause states:

(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.

However, should the transmitting lawyer fail to take proper precautions, the recipient is advised “not to try to obtain from metadata information relating to the representation of the sender’s client where the recipient knows or should know that the information is not intended for the recipient.”
It makes sense that the duty is reciprocal. A client should not suffer merely because his/her/its transmitting lawyer does an inadequate job of safeguarding confidential information.

Carolyn, The proposed rule doesn’t take the burden off the transmitting lawyer. It’s first clause states:

(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.

However, should the transmitting lawyer fail to take proper precautions, the recipient is advised “not to try to obtain from metadata information relating to the representation of the sender’s client where the recipient knows or should know that the information is not intended for the recipient.”
It makes sense that the duty is reciprocal. A client should not suffer merely because his/her/its transmitting lawyer does an inadequate job of safeguarding confidential information.